Tag Archives: Judiciary

This is mark Joseph “young” blog entry #271, on the subject of New Jersey’s 2018 Election Results.

We’ll keep this short. More information can be found in the previous post #270: New Jersey’s 2018 Election Ballot. At the polling place yesterday I was told informally that voter turnout was well above norms for off-year elections (years in which there is not a Presidential race at stake). The traditional political wisdom is that high voter turnout favors Democrats, and that appears to be the case this year, as the Democratic party has virtually taken over New Jersey on the Federal level.

Democratic Senator Bob Menendez

Public Question #1, School Projects Bond (2018) passed marginally, allowing the state to borrow another half (B)billion dollars for schools as career and technical grants and school security projects, college career and technical education grants, and something labeled “school water infrastructure grants”. The vote was fairly close, with about 52% of votes supporting it.

Our Democratic senior Senator Bob Menendez held his seat, with a fraction over 50% of the vote. The Republican Bob Hugin trailed at about 46%, the rest of the vote split between four other candidates, the Libertarian and the Green getting about seven tenths of one percent of the vote each, the two independents getting half a percent each.

Democrat Jeff Van Drew took the seat vacated by retiring Republican Frank Lobiondo, with about 52% of the vote.

The Third Congressional District was still undecided as of this writing, Republican incumbent Tom MacArthur holding 49.8% of the votes counted against Democrat Andrew Kim, with 48.9%, and 1.1% of precincts not yet reported.

It appears that New Jersey has moved from being about as neutral a state as you can have to being solidly Democratic–our governor is a Democrat and both of our state legislative houses are controlled by Democrats, both of our Senators are Democrats, and as it stands at this moment ten out of our twelve seats in the House of Representatives are held by Democrats. Republican Representative Chris Smith continues as the longest-seated of our officials, adding two more years to his thirty-eight year streak in the fourth district, and although officially it has not been settled Republican Tom MacArthur has a slim lead to retain his seat in the third district with one percent of the precincts still unreported.

I’ll try to add a comment here when that race is settled.

Nationally, as you probably know, the Republicans gained a few seats in the Senate, but the Democrats took the House. This is probably a good outcome, generally, for the nation. The Senate has advice and consent for all Presidential appointments, including judicial appointments, and Republican control there means that more conservative judges will be approved to balance the spate of liberal judges appointed during the Obama years, improving the balance in the judiciary. Meanwhile, since all spending bills must originate in the House, Republican policy can’t run wild, as compromise will be necessary for the government to continue functioning in the future.

This is mark Joseph “young” blog entry #261, on the subject of A Small Victory for Pro-Life Advocates.

The United States Supreme Court has ruled in National Institute of Family and Life Advocates v. Becerra 585 U. S. ____ (2018), in favor of pro-life Crisis Pregnancy Centers who, under the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), were required to communicate to their clients that the State of California was ready to assist them in obtaining abortions.

It should be understood up front that the Court did not actually rule that the FACT Act was unconstitutional. That was technically not what was on appeal. The National Institute for Family and Life Advocates, NIFLA, had raised a challenge to the law and requested an injunction preventing its enforcement while the case was being heard. The lower courts ruled that NIFLA probably could not win and so was not entitled to an injunction; the Supreme Court granted the injunction, stating that NIFLA probably could win on the merits and so enforcement should be stayed until the case had been heard.

Justice Thomas wrote the opinion of the court, joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. He observed that the law appeared to be targeted specifically at clinics and similar services which focused on alternatives to abortion and attempted to encourage women to give birth to their babies, often providing prenatal and post-natal care for such mothers. Clinics run by licensed professionals or run under a state license were required to deliver a notice consisting, in English, of forty-two words (one hyphenated) plus a phone number (top notice in the picture), informing clients that the State of California was ready to help them kill their unborn babies if they so wished. This notice had to be prominently posted in large letters within the facility, included as a full-sized document with any papers given to clients, and included in any advertising. Further, this notice had to be delivered in every language recognized by the local county as a major spoken language within the county–at least English and Spanish, and in Los Angeles County thirteen distinct languages.

Thomas observed that this was requiring an organization whose very purpose was to reduce the number of abortions to communicate the reverse message, that abortions were readily available elsewhere. He further observed that this was a controversial message, and that the weight of the requirement was excessive–if such a licensed organization decided to post a billboard in Los Angeles County that said “Choose Life” with a phone number, that billboard would also have to have that forty-two word notice in thirteen languages in the same sized print as the core message, overwhelming the intended message with what amounts to paid advertising for their competition.

It would be something like requiring all politicians of any party to include in their paid advertising equal space promoting each other candidate in the same race.

Facilities serving the same purpose that were not licensed or run by licensed personnel were required similarly to post a shorter notice, again in all the same ways and places, stating that California has not licensed them as medical care providers. Again, it was to be posted prominently, included in all advertising, and given to clients in printed form. Further, the legislation was worded such that the requirement would only apply to pro-life organizations.

So egregious was this animosity toward pro-life organizations that Justice Kennedy wrote a concurring opinion, joined by Chief Justice Roberts and Justices Alito and Gorsuch, attacking the “viewpoint bias” of the law. The legislative history made it clear that legislators were attempting to force opponents of abortion to publish material contrary to their views. He observed that the official history included a self-congratulatory statement that the Act was part of California’s legacy of “forward thinking”, and then wrote,

[I]t is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977).

That amounts to religious/political discrimination, and again a violation of the First Amendment.

*****

Writing the dissent, and joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Breyer makes several significant points.

The fact is we regularly require organizations to post informational signs at least obliquely relevant to their purpose. One example leaps to mind. A few years back New Jersey had a problem, that several newborn babies were rescued from public trash cans because young parents did want them and could not care for them. Today, all emergency rooms and many other care clinics have signs on the walls informing anyone who enters the building that there are safe drop points where you can abandon a child no questions asked. Obviously that notice is irrelevant to the majority of clients in those facilities; just as obviously such locations are good choices for reaching persons who need that information. We might debate whether such a program fosters teen-aged irresponsibility (a mother who would never dream of putting her baby in a trash bin might abandon it at a safe drop point if made aware of such, and so free herself of the task of caring for the child), but creating and promoting the option saves lives. Other notifications are posted; the lawfully-required notices on tobacco products and in tobacco ads are clearly counter to the interests of tobacco companies.

However, Breyer attempts to sweep away the aspect that these laws were carefully tailored to target pro-life organizations. He tells us that organizations that are not pro-life don’t need to be required to tell women about the availability of abortions, as they are probably already doing so. That’s hardly a sufficient basis for a distinction regarding compelled speech.

For the moment, all that NIFLA has won is a delay, that the law cannot be enforced until the case has been heard. However, the majority opinion and the significant concurrence are filled with good reasons for the law to be overturned, and as the case returns to the lower courts NIFLA has a good chance winning, probably without another Supreme Court intervention.

This is mark Joseph “young” blog entry #259, on the subject of Saying No to Public Employee Union Agency Fees.

Four decades ago the Supreme Court handed down a decision in a case entitled Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). In it the Court ruled that it was not a violation of constitutional rights for unions representing public employees to charge what was called an “agency fee” to all public employees who were not members of the authorized public employees’ union. Since the law required that the union represent such non-members equally with members (that is, same pay, benefits, and protections), the rule was intended to prevent “free riders” who got the benefits of union representation, union pay and benefits, without paying for it.

This is not entirely unknown, but it is rare. The Court has a rule it calls a doctrine and names stare decisis, which in essence means the decision stands. It happens sometimes, but usually the Court puts a lot of work into making it possible for any previous decision to still be enforceable in narrower circumstances and new rules to apply to most cases. That did not happen this time. Janus overturned Aboud. According to the Court, requiring persons who do not agree with union policies to pay to support the union is a First Amendment violation, because it compels such persons to support speech with which they disagree.

To begin to understand this, we need to recall that money is fungible–something we discussed in our second web log entry nearly five years ago, and which the majority opinion mentions. To recall the example, if I have a dollar and I’m going to go to the corner store to buy candy and comic books, it’s likely that I’ll wind up with fifty cents’ worth of each. If, though, my mother gives me another dollar, and tells me that I am not to spend any of the money she gives me on candy, I will spend her dollar on comic books and my dollar on candy, and now I have twice as much candy because she paid for the comic books enabling me to rebudget my own funds to cover more candy. In much the same way, the money given by non-members to cover the “costs of negotiating”, even if our bookkeeper tells us that all of it went to that purpose, probably frees funds to go for other purposes we might not approve.

Abood was not so naive as that. It required unions to do an accounting, separating “chargeable” from “non-chargeable” costs, and bill non-members only for their share of the “chargeable” costs. Political spending was to be “non-chargeable” and anything that was part of enabling the union to negotiate was “chargeable”. In practice, however, “non-chargeable” had come to mean contributions to political candidates, and anything else was lumped into “chargeable”. In the present case, the union billed non-members for costs ranging from lobbying for legislation to paying for the member convention (which presumably non-members did not attend). Non-members were entitled to sue if they believed something non-chargeable had been included, but the summaries provided by the unions were so lacking in detail that it would require thousands of dollars in attorney and accountant fees just to determine what was and was not charged.

More fundamentally, though, Janus argued that the very act of negotiating with the government for pay and benefits is itself a fundamentally political action and thus a form of political speech. Janus says that he is not of the opinion that the State of Illinois where he works should raise salaries for unionized public employees; the state has the lowest credit rating of any state in history because of its overspending and indebtedness. Janus opposes the union’s argument that the state needs to raise taxes to increase salaries and benefits for state workers. He thus highlights the fact that asking for money from the state is fundamentally political speech, and being required to subsidize the bargaining process makes him party to that speech against his will.

The Court agreed.

For what it’s worth, almost immediately upon the release of the opinion, many liberal lobbying groups sent emergency funding requests to supporters, claiming that they will have to make up for the shortfall they expect to incur since public sector unions will have less money to give them–this according to the New York Times (as cited by Investors.com). It is of course possible that these groups are lying to their supporters, that in fact the unions have not been misusing non-member money to support political causes and there will be no reduction in such support, but the fear of it makes a good campaign motivator to bring in more. Preferring to think better of them, we are forced to face the possibility that indeed the union has been using non-member agency fee money to support political causes and lying about it in their accounting (or perhaps believing that they have very little chance of being taken to court over it and at least a fair chance of winning the case if they are). So one way or another, the liberals appear in a bad light: either they have been lying about the inappropriate use of non-member money to support political objectives, or they are lying now about anticipating a reduction in the money available for such objectives.

Or perhaps they’re expecting to lose revenue due to a mass exodus of union members. Why, though, would that be? If people believe in the union, would they not want to support the union and be part of the union process? Or is it the case that vast numbers of public employee union members feel coerced into membership because it has cost nearly as much not to belong as it did to belong?

Or maybe they’re just confused.

It has also been reported that a Democratic New York State Senator is proposing legislation to end-run this by permitting the public employee unions to include in negotiations payment from the state to cover the costs of representing non-members. Seriously, if it is an impingement on free speech to require non-member public employees to pay costs of the union which benefits them in negotiations, it must be far more so to require it of taxpayers whose only connection to this is that they have to pay the amount given to the union. They seem confused to me.

Justice Kagan’s dissent culminates in an insistence that Abood should stand primarily because of stare decisis, and because of the extensive reliance on the decision. She notes that at least twenty-two states are going to have to legislate new laws regarding their public service unions, and thousands of contracts relying on agency fees will have to be renegotiated.

Before she reaches that point, she in essence reargues Abood, asserting that it is good law well founded and that the majority overturned it merely because the majority didn’t like it.

The fundamental point of Abood was always that it is to the benefit of the government’s ability to manage its employees to have them represented by exclusive negotiators, unions, which are well-funded and independent of government. Agency fees were considered a reasonable way to achieve that. She further argues that (application aside) the Abood distinction between political spending and costs of bargaining and contract management is a clear one. She objects outright to the notion that the question of whether governments should give their public employees more in salary and benefits is a political one within the context of the employer-employee relationship, because it is essential to that relationship. She further forecasts a gloomy future in which the number of “free riders” increases as union members recognize how much they can save by leaving the union coupled with the fact that the union must continue to represent them equally whether they are members or not.

Wait a minute. Did I already say that?

It is not at all clear that unions will be unable to function without the agency fee support. It is certainly the case that unions have abused the “chargeable/non-chargeable” distinction of Abood (is it really credible that three quarters of the cost of union membership goes exclusively to union contract negotiation and administration costs?). It is also the case that public sector unions appear to operate successfully in states which do not permit agency fees.

I am not persuaded that this will cause all the chaos predicted. It does not change the exclusive negotiator rule, that is, if you are not a union member but are in a public employee union shop the union is still your exclusive representative for negotiations. Nor will it completely eliminate union membership, since one must be a union member to have any impact on policy. It will weaken unions some; they will have less money to spend on their political pursuits. However, there is a serious issue concerning whether public employee unions ought to be involved in political pursuits at all, and if we believe that the unions as a whole have a right to speak on issues of public concern, we must also believe that public employees individually have the right not to support those entities with which they disagree.

This is mark Joseph “young” blog entry #255, on the subject of On Sveen: Divorcees, Check Your Beneficiaries.

It’s a good thing it’s summertime, because the Supreme Court is taking us back to Minnesota, this time for Sveen et al. v. Melin and the first look at the Contracts Clause of the Constitution in a quarter of a century. Sound dull and esoteric? Well, no–it cost Kaye Melin a substantial amount of money, and might similarly impact an unknown number of divorcees throughout the country. As Ambrose Bierce once said, “Death is not the end; there remains the litigation over the estate.”

Let’s start with the facts.

In 1997 Mark Sveen, father of two children by a previous marriage, married Kaye Melin. The next year he bought a life insurance policy, naming her as beneficiary and his two children as contingent beneficiaries. The ordinary expectation with life insurance is that it is a contract, that upon the death of the insured a sum of money will be paid to the primary beneficiary or beneficiaries, but in the event that the primary beneficiary predeceases the insured the money will be paid to the contingent beneficiary or beneficiaries; if they have also died, the money is paid into the estate to be distributed in accordance with the will or by the laws applying to intestate estates.

In 2007 the couple divorced, apparently amicably.

In 2011 Mark Sveen died.

Apparently neither of them had been made aware that in 2002 the Minnesota legislature passed a law stating that when a couple divorces each divorced spouse is automatically removed as beneficiary from any legal documents of the other. It was apparently a surprise to Melin. She claims that she and Sveen specifically left her as beneficiary on that policy partly because they were still friends and partly because the payments were made from their joint account. However, the stepchildren claimed the money was theirs, based on this law.

The trial court agreed with the stepchildren, the Circuit Court overturned in favor of the divorced spouse, and the Supreme Court has just restored the original judgment. Women’s groups are aghast, and Melin appears to have been cheated of her reasonably expected benefit by the stroke of a legislative pen of which she had no notice.

Justice Gorsuch is on the side of the women. He says that there is absolutely no way that the application of this law in this situation can survive even modest scrutiny under the Contracts Clause of the United States Constitution.

The Contracts Clause appears in Article I Section 10 Clause 1. It reads “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” The critical point is the “Law impairing the Obligation of Contracts”. Everyone agrees that this was because early state legislatures were often passing private legislation excusing influential citizens of debts to foreign creditors, and the Federal government (particularly the Federalist party) saw the danger that such unilateral cancelations of loan contracts would impede much-needed foreign capital investment in the new nation.

Gorsuch agrees that it would be possible for Minnesota to pass such a law which going forward impacted future insurance contracts. That is, once the law is on the books it is presumed that anyone buying a life insurance contract is made aware that divorce will alter the beneficiary status, because the law exists. However, the point of the Contracts Clause is to prevent states from altering contracts retroactively–that is, whatever Sveen believed he was contracting at the time he purchased the policy is what Sveen should get, and that means that since he named Melin as beneficiary and had no notice at the time that this would be changed without his knowledge or explicit consent, he should get what the contract says, and that means his primary beneficiary Melin should receive the proceeds.

Justice Kagan, writing for the 8-member majority, disagrees. She says that the State is simply creating by law what it perceives to be the normal expectation of divorcees, that if they have failed to remove their divorced spouse as beneficiary on their policies it is undoubtedly an oversight. Melin’s claims to the contrary in this case are immaterial, and the law certainly permitted Sveen to contact his insurer and reinstate his divorced wife as beneficiary, so it was a simple matter to correct. Indeed, had the life insurance policy been included in the divorce settlement decree, that would have overridden the effect of the law. Further, Sveen has lost nothing because the insurance policy was paid to his contingent beneficiaries; he has gotten what he wanted. No significant term of the policy was altered.

If that sounds like garbage to you, it did to Gorsuch, too. Even the majority admits that the beneficiary is a significant part of the contract, and Gorsuch would say the most significant part. There was evidence that Sveen did not “change” the policy to “restore” the initial primary beneficiary because he was unaware that any such change was necessary–his copies named Melin, and Melin’s testimony suggests that this was what he wanted. The notion that failing to remove a divorced spouse as beneficiary would be a simple oversight but that failing to restore such a spouse to that position without any notice that it had changed could not possibly be an oversight is completely incomprehensible.

However, even the dissent agrees that laws such as the one in Minnesota can affect subsequently purchased policies and trusts and similar financial instruments, and the majority has stated that they can be retroactive. Quite a few states have such laws, which are an ordinary part of state regulation of the interpretation of the intent of a decedent where any point is unclear.

Thus the short version is this warning: if you have gotten divorced and you have any legal instruments by which one spouse has named the other as beneficiary, and these have not been specifically assigned in the divorce decree, check to be sure that these will be treated according to your expectations and not cancelled by a state law of which you are unaware which is attempting to enforce what the legislature presumes is your actual intent despite your contractual statement otherwise.

This is mark Joseph “young” blog entry #253, on the subject of Political Messages at Polling Places.

You may have heard that the Supreme Court, in a 7-2 decision, struck down Minnesota’s law forbidding the wearing of anything “political” when you go to the polling place to vote.

One of the appellants was turned away from voting for wearing a shirt like this.

The case is Minnesota Voters Alliance et all. v. Mansky et al., and continuing his interest in leaving a mark on I Amendment law, Chief Justice John Roberts wrote the majority opinion. The law is a fairly common sort, the court identifying thirty-six other states and the District of Columbia as having similar laws. In New Jersey we have N. J. Stat. Ann. §19:34–19 Insignia at polls

19:34-19. No person shall display, sell, give or provide any political badge, button or other insignia to be worn at or within one hundred feet of the polls or within the polling place or room, on any primary, general or special election day or on any commission government election day, except the badge furnished by the county board as herein provided.

A person violating any of the provisions of this section shall be guilty of a disorderly persons offense.

It does not appear that the New Jersey law would withstand the scrutiny of this case, because of the problem the majority had with the use of the word “political”. That word, it argued, was too broad; and when they questioned the State’s attorney at oral argument it became more problematic. An NRA shirt would always be banned, but a Rainbow flag shirt would only be banned if there were an issue of gay rights on the ballot. A shirt displaying the text of the I Amendment (freedom of speech, press, religion, and association) would always be permissible, but one with the text of the II Amendment (right to bear arms) would always be excluded. Guidelines issued by the State to polling place judges did not, in the Court’s view, clarify the matter.

Justice Sotomayer dissented, joined by Justice Breyer. Their objection could be summarized as stating that the decision is premature, that they should not have decided the case but deferred it to the Minnesota State Supreme Court. The majority claimed that they could not imagine any interpretation of the law as written that would pass muster with its concerns, but the dissent said that in matters of state law that have not yet been interpreted by the state, it is if not normal at least common for the Supreme Court to ask the State’s highest court to provide its understanding of the law, and then determine whether that understanding passes constitutional muster. This law has been in place for over a century, dating back to the end of the nineteenth century when polling places were often filled with hecklers and vote privacy was minimal. Until this case (seven years ago) it has never been challenged and no one had been prosecuted for violating it, nor had anyone been refused the right to vote. It probably has been applied reasonably, even if the Supreme Court doesn’t know how, and an opinion from the State courts would have been an appropriate step before striking down such a long-established statute.

There’s a solid argument there, but the majority apparently didn’t believe the State court could provide a viable response and didn’t wish to delay the matter.

Thus there is a good chance that whatever rule your state has regarding wearing political messages to the polling place has just been ruled unconstitutional.

Then I read the dissent, and realized that this was not a simple case, and it is not a mystery why it kept flip-flopping its way up the ladder to the Supreme Court. Ultimately, though, it comes down to whether when we read the statute we read it as and or or.

Here’s the background. Prior to 1993–which for some of you seems like ancient history, but is really not that long ago–state governments had a lot of ways of removing voters from the registration lists so that they couldn’t vote. One of the most egregious was that if you missed an election one year the system concluded that you had either moved or died, and removed your name from the lists with the result that if you arrived the next year you would discover that you weren’t registered and couldn’t vote. To remedy this, the Clinton administration passed the National Voter Registration Act (NVRA), which both required states to maintain current voter registration lists (which included removing ineligible voters) and limited how they could remove persons from the list. It was tweaked a bit in 2002 when Bush (the second Bush) signed the Help America Vote Act (HAVA), which attempted to clarify some of the statements in the previous law. Ohio has a system which it maintains is consistent with the requirements of those laws, by which it removes persons from the voter lists based on a multi-step process. The majority agrees; the dissent disagrees.

It will help significantly to look at the statutes themselves, large portions of which Justice Breyer appends to his dissenting opinion.

The focus of discussion begins with §8(b) of the NVRA

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—

(2)

shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.

The HAVA modifies that to say solely by reason of the person’s failure to vote, probably because of confusion with §8(d). That section lays out a somewhat complicated process for verifying that a voter has moved out of the voting district in which he is registered. The simple way is for the registrant to confirm in writing that he has moved. The law recognizes that a lot of people won’t do that, and so provides an alternate method involving sending (by forwardable mail) a postpaid return card which permits the recipient to respond confirming that he still lives at the stated address or that he does not. If the card is returned, the registrar of voters accepts the statement as true and the matter is resolved. If the card is not returned and the voter does not vote in the next two federal elections he may be removed from the list. (Federal elections occur every other year because terms for The House of Representatives are two-year terms.)

At issue is under what circumstances such a card can be sent. §8(c) specifies that if the state obtains change of address information from the Post Office, it must verify that information by following the procedure just outlined. However, §6(d) specifies that the same confirmation process should be used if voter registration materials are sent to a registrant by non-forwardable mail and are returned as undeliverable. It thus appears that there is more than one way by which the registrar of voters might have reason to believe that a voter has left the voting district, triggering the §8(d) process.

Here is where it gets tricky.

Ohio’s system works like this. If a registered voter fails to vote for two consecutive years, or to engage in any other voter-related activity such as signing petitions, a forwardable post-paid return card is sent to that voter’s registered address. If the card is returned, that’s the end of the matter. If the the card is not returned, Ohio gives four additional years (covering at least two Federal elections at least one of which is a Senate race and one a Presidential race) to vote or engage in other voter activity, after which the non-voting voter is removed from the voter registration list.

The majority says that this is a reasonable method, perfectly in keeping with §8(d). The failure to vote alerts the registrar of voters that this person might not live here anymore, and because the person fails to respond to the return card confirming their presence and at least two additional Federal elections pass in which they do not vote, they can be removed. The majority takes the language in §8(b)(2) to put an end to the practice of removing voters solely for failure to vote by requiring the confirmation process of §8(d). They note that some states send such cards regularly or randomly to confirm addresses, and Ohio’s system complies with their understanding of the §8(d) process.

The dissent says that such cards are for confirmation of information gained by some other means, such as from the Post Office (§8(c)) or through a different mailing verification process (§6(d)). They assert that the point of §8(b)(2), that no one should be removed soley for failure to vote, means that failure to vote cannot be the trigger to send the returnable card. They claim that the §8(d) confirmation process must be triggered by something other than failure to vote.

Perhaps the strongest point in favor of the dissent’s position is that one of the stated purposes of these two laws is to increase voter registration and prevent eligible voters from being removed from the list inappropriately. The fact that someone doesn’t vote for a couple years does not mean they are no longer in residence in the district, and the fact that they fail to return a postpaid card confirming that they are present is not a particularly telling confirmation of anything. As the dissent argues, the majority of people probably won’t bother returning such a card.

The majority points to the statute on that, noting that both the Federal legislature and the State of Ohio believed that the non-return of such a card would be an adequate indicator that the person has moved. The argument is that a person who does not vote and does not return the card is not being removed “solely” for failing to vote, but for failing to vote over the course of six years and failing to return a confirmation card. The question is whether the state can send the confirmation card based on two years of failure to vote, or whether that constitutes removing them “solely” for failing to vote.

In favor of the majority, though, if §8(b)(2) means what the dissent claims it means, it is poorly worded. The majority reading is not at all awkward or implausible, and the Ohio system appears to fit the §8(d) requirements with room to spare. Despite the ranting of the minority, the majority opinion does seem the more natural reading of the text.

The upshot is that the Ohio system stands, and many other states with similar systems will not be challenged. Removal from the voter rolls solely for failure to vote is not permitted, but it can be the trigger that leads to an inquiry by mail as to whether the voter still lives in the district.

This is mark Joseph “young” blog entry #247, on the subject of The Homosexual Wedding Cake Case.

The case, as decided by the United States Supreme Court, is MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL., 584 U. S. ____ (2018), and it is one which I, at least, have eagerly anticipated. It is the case in which the baker was convicted of violating the civil rights of a gay couple by refusing to design a wedding cake for them, on the grounds that it was an artistic expression which violated his rights of freedom of speech and religion. It had been expected to help find the point at which religious objections to homosexuality would or would not stand against legal rights of homosexuals, although it does not seem to have done so.

The media has called this a “narrow” decision, and many have asked how it can be “narrow” if it is a 7-2 vote. The narrowness is entirely in what was decided. Virtually nothing concerning the balance between religious freedom and homosexual rights is solved by this case, which in its majority opinion decided only that the Colorado Civil Rights Commission seriously violated the protected religious freedom of the baker, Jack Phillips, and so its ruling could not stand. It observed that in Colorado in the year these events occurred such a refusal was reasonably understood to be legal, although it might not be so now (because Colorado had not legitimized homosexual marriage at that time and has since done so). However, the case is a slap in the face of progressivist atheists who want to force the opinions of religious conservatives out of the political and commercial arenas.

Justice Kennedy delivered the opinion of the court, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch–six votes for the majority opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment, which gives seven votes for overturning the Colorado decision, and Justice Ginsberg dissented, joined by Justice Sotomayer–but the splintering went beyond that, as Justice Kagan wrote a concurring opinion in which Justice Breyer joined, and Justice Gorsuch wrote a concurring opinion in which Justice Alito joined, so we have five written opinions on the matter, and a very small sliver of agreement on the issues.

Justice Kennedy begins by clarifying that in all matters in which religious liberty is at issue, the State is required to be a neutral arbiter showing a respectful attitude for the expressed religious beliefs of the parties involved. It is certainly possible that a businessman might be compelled to provide services to which he objects, provided that the law is religiously neutral and does not directly attack his beliefs. The problem in the Masterpiece case is that far from neutrality there was evident animosity toward religion. In the first hearing, one of the commissioners said that Phillips can believe “what he wants to believe” but cannot act on those beliefs “if he decides to do business in the state.” The same commissioner restated that view moments later, according to the record, saying “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.” At the next hearing, a different commissioner was recorded saying

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be–I mean, we–we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to–to use their religion to hurt others.

Kennedy noted that this twice disparages the baker’s religious beliefs, first by calling them “despicable”, and again by claiming they are mere rhetoric having no substance or sincerity. None of the other commissioners present objected to these statements, and they were never repudiated in the record that included appeals courts in Colorado and an appeal to the Supreme Court.

Yet if we think this is just rhetoric, that somehow the expression of such hostility toward the baker’s religious views did not indicate judicial bias against him, Kennedy goes beyond this to observe that the same commission during the same period of time considered three other cases in which bakers who declined to make cakes for specific groups were cleared of any wrongdoing based on their claim that it would have compelled them to make statements they regarded offensive. In all three cases, the bakers had been asked to make cakes expressing anti-homosexual views, and refused to do so. The commission in those cases concluded that the bakers could not be compelled to express opinions they considered offensive. In this case, however, the commission claimed that the opinion expressed on the cake would be attributed to the purchasers of the cake, not the baker, and so his speech was not protected. Further, in the other cases the commission said that the fact that these bakers were willing to sell other products to the customers absolved them of the charge of refusing to do business with those customers, but in this case they said that Phillips’ willingness to sell birthday cakes, cupcakes, cookies, even shower cakes, was irrelevant given his refusal to make a wedding cake for them. The lower court, it was noted, dealt with this in a footnote, to the effect that the cakes requested in the other cases would have required expressing offensive statements, but the one in this case did not–which, as Kennedy notes, is passing judgment on the religious values of the baker by declaring that what he finds offensive is not offensive.

Thus the case that Phillips’ won is in essence that his religious views were mistreated by the judicial process, which should have accorded them greater respect–particularly as the commission for the protection of civil rights in this case is also charged with protecting the civil rights of religious groups. The point is made that this case says nothing about how such cases might be decided in the future, but that the religious views and liberties of individuals involved must be respected and treated impartially by the government.

So, what about all those other opinions?

Justice Kagan makes the point that the decision is limited specifically because it is based on the express bias of the adjudicators. She asserts that the commission could have treated the religion issue respectfully and impartially and still reached the same result, and that the other cases can be distinguished on the basis that the bakers would not have made cakes with those messages for any customer, but Masterpiece would have made wedding cakes for heterosexual customers.

It is a slim distinction, which Gorsuch rejects in his concurring opinion. He first notes that when religious rights are threatened by legal action, strict scrutiny applies–the government has a heavy burden to prove complete neutrality in regard to religion in the case. He is satisfied that the majority opinion reaches that result. As to the cake, Gorsuch agrees with the baker in distinguishing a heterosexual wedding cake from a homosexual wedding cake, against Kagan’s view that a wedding cake is a wedding cake, and the distinction is prejudicial against the customer. Yet Kagan asserts that requiring a baker to make an anti-homosexual cake with messages the baker finds offensive is something that baker would not do for anyone, and thus distinct–but in this case, she is making a distinction where in the other case she is generalizing. That is, the baker is being asked to make a cake with a message written on it, and if the message is not an expression of the baker’s beliefs he cannot discriminate based on the message. If a baker can say he will make a cake with the message, “Congratulations on your fiftieth wedding anniversary and enjoy your cruise” but he won’t make a cake with the message “Homosexual perverts will not possess God’s kingdom”, he is discriminating based on his own beliefs, making one message cake for one customer but not making another message cake for another customer.

Before Gorsuch explores this he notes that the commission changed its legal standards between the two kinds of cases. In both cases, the persons most likely to purchase the type of cake in question were members of a protected class. In the case in which the commission agreed with the bakers that the message was offensive, they said that there had to be a showing of actual animus toward the class for the charge to stand; in the case in which they disagreed with the baker’s views, they said that such animus could be presumed by the recognition of the effect on the protected class.

Justice Thomas agrees with the court in its assessment of the religious prejudice, but he asserts that the baker’s freedom of speech is also impinged in this case. He notes that the Colorado Court of Appeals agreed that Phillips’ work was expressive, crafting individual wedding cakes for customers, meeting with the couple and working to express them in the artistic project that is their cake. He demonstrates that a wedding cake itself is a communication that a marriage is occurring. Ultimately, he holds that freedom of speech must allow persons to refuse to create anything that expresses endorsement of a view with which they disagree, even if it is a culturally favored view.

Justice Ginsburg disagrees. She says that notwithstanding Phillips’ claims, most observers would not recognize a wedding cake as expressing a message, and certainly not a message from the baker. She says that the evidence of bias is insufficient and there is no significant hostility toward religion here. She then makes the same argument made by Kagan, that a wedding cake is a wedding cake, which as has been shown is flawed.

In conclusion, the case does rule that religious opinion, including specifically Christian opinion that homosexual marriage is immoral, is protected and should be treated with respect. It does not rule that Christian bakers can en masse refuse to make cakes for homosexual weddings, but that if they do so any legal action taken against them must be adjudicated impartially and with respect for the religious views of the bakers. Depending on the circumstances, the baker might still be compelled to make such a cake or punished for refusing to do so.

This is mark Joseph “young” blog entry #241, on the subject of Deportation of “Dangerous” Felons.

The United States Supreme Court decided a case entited Sessions v. Dimaya (84 U. S. ____ (2018)) which has created a bit of a stir. The basics of the case are that the defendant/respondent Dimaya (pictured) is a long-time legal resident alien twice convicted of burglary under California law, and Immigration and Naturalization Services decided to deport him under a law that permits the deportation of any non-citizen who commits an “aggravated felony”, as defined by 18 U. S. C. §16, which includes the wording “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The majority opinion, written by Justice Kagan, held that that provision was “void for vagueness”, relying on a previous case which considered similar language in another statute.

What has the legal news world buzzing is that Justice Gorsuch concurred with most of that opinion, and with the judgment, although he also wrote a separate concurring opinion explaining his position. Chief Justice Roberts and Justice Thomas both wrote dissenting opinions, and the court split five-four, Gorsuch viewed as the swing vote in a ruling that otherwise had the liberal members of the court in the majority.

There is much about the case that is interesting, and some that is at least confusing, as it raises many varied legal issues and viewpoints.

The argument of the majority seems to be that there is no way to tell whether burglary is an aggravated felony. The majority says that the statute would require the court to consider not the elements of the crime itself, nor the specifics of the facts of the case, but the “ordinary case”, and then demonstrates how foolish it is to attempt to identify the “ordinary case” of a wide range of serious felonies. For example, is the ordinary case of kidnapping an armed ruffian grabbing a victim off the street at gunpoint and forcing him into a van to hold for ransom, or a non-custodial parent quietly picking up a child from school? It becomes impossible to tell, they maintain, whether any given crime, in the “ordinary case”, is necessarily likely to be violent.

Already I am confused.

When I was prepping for the bar exam a quarter century back, I had to learn a list of what was I think ten “dangerous felonies”. I remember the list, which included both actual and attempted versions of each crime, as including murder (intentional homicide), robbery (theft by force or threat of force), assault (threat of force), arson, rape, and riot–six out of ten, not too bad, and was burglary one of the ones I missed? A quick internet search finds a felony murder list (well described at that link) to include kidnapping, rape, arson, robbery, and, yes, burglary. It sounds to me like the Common Law recognizes burglary as a potentially dangerous felony.

Of course, therein lies part of the rub. Burglary has a Common Law definition, but also a myriad of statutory definitions. The Court seemed to think that the California statute under which Dimaya was convicted was broad enough to cover dishonest door-to-door salesmen, and that the question of whether such crimes were typically violent was extraordinarily difficult.

What, though, is burglary? It’s complicated, because it’s what we call a double-intent crime.

If you were working on, say, a rooftop billboard, and you fell and crashed through a skylight into someone’s apartment, you would not be guilty of anything save perhaps some negligence. You never intended to enter the apartment, and assuming you don’t then form the intent to stay there or commit a crime while on the premises, it’s just unfortunate.

If a storm is coming and you break into an abandoned warehouse for shelter, you’re guilty of breaking and entering and trespass, but as long as that’s all you do you’re not guilty of burglary.

Burglary, legally, means unlawful entry with the intent to commit a felony. It is that second intention that makes it a serious crime. Usually the felony is theft, and in the Dimaya case that was the felony involved. Burglary is considered a violent felony in part because many of the crimes with which it is associated (to commit murder, rape, arson, et cetera) are violent, and in part because it is considered a risk that someone unlawfully entering a residence might encounter the resident leading to a violent confrontation.

However, noting that in the present case the issue involves a conviction for burglary as defined by a statute with a very broad sweep, the majority decided that it would be impossible for a judge to determine reliably what the “ordinary case” would be, and how great the potential risk of violence would be, and then that the standard itself is an ill-defined threshold, and thus identifying whether a particular case meets that requirement is an entirely subjective matter. That, they assert, creates a Fifth Amendment Due Process issue. Due Process of Law includes that citizens be on notice of exactly what is and is not illegal, and not be subject to the caprice of police, prosecutors, juries, and judges to decide what is and is not a violation. Dimaya could not have known that his actions would count as violent felonies rising to the level required by the deportation statute, and thus he was not afforded the protection of due process. Gorsuch agreed.

Roberts disagreed. He argued that the text was not vague, and that any judge ought to be able to determine the degree of risk of violence in the ordinary case of a specified crime. It’s not clear that he overcame the examples offered by the majority.

Thomas also dissented, but at a much deeper level. He first asserts that “vagueness” doctrine is not consistent with the original meaning of Due Process, but does not pursue that far enough to overcome Gorsuch’ explanation as to why it is. Thomas then states that the “ordinary case” analysis was something the Court itself invented and read into the previous statute, and that since it makes this statute unconstitutional to so read it but it is not actually in the statute, it is the Court’s fault and the Court should read it otherwise. He says that the wording of the statute requires a specific circumstance analysis, that is, whether the person was convicted of a crime which under the facts of the case had a high risk of violence.

This is interesting, because as we noted the California burglary statue covers a lot of non-violent crimes and a lot of potentially violent ones. Arguably residential burglary with the intent to commit theft stands a fairly high risk of a violent encounter with a resident homeowner–but Dimaya specifically targeted vacant residences, significantly reducing the probability of violence, and there was no indication that violence was ever even close to being used. Thus the facts in the Dimaya case suggest that his particular burglaries were never more potentially violent than simple trespass, unless you count violence to property. You can only call them dangerous felonies if you base it on some notion of the “ordinary case” that asserts these are more violent on average than his were. That’s the analysis Thomas would reject. However, he then wants to uphold the deportation, saying that the statute was not vague because at the time courts were unanimous in the opinion that burglary was a violent felony (which does not take into account the fact that Dimaya’s were not, which was the analysis Thomas was saying we should use). So it does not appear that Thomas manages to give solid support to the outcome he wants.

However, the genuinely interesting contribution in this case is that of Gorsuch. After arguing that Due Process requires fair notice, and thus that laws must be clear in their intent, and so agreeing with the majority that this law is not, he delves into a much deeper issue. He asserts that the Separation of Powers doctrine requires that crimes must be defined by the legislature, the body of persons elected by and accountable to the people most directly, and not by the judiciary. The legislature is not allowed to ignore this responsibility by telling judges or juries to decide whether any particular action is a crime; it must give specific parameters for what does and does not constitute one.

What is most interesting about this position is that were it consistently applied, it would undermine nearly all of our administrative law, from the IRS to the EPA to the FCC, because it nearly always involves Congress effectively stating broad parameters of an objective and executive branch agencies writing the actual regulations to be enforced. By Gorsuch’ view, this would be unconstitutional, as such regulations were not written by the legislature but by the executive. Such delegation of authority is not authorized by the Constitution, and thus would not be enforceable.

There is a serious question concerning whether it would even be possible for a modern state to function entirely by legislation without administrative agencies empowered to create and enforce regulations. On the other hand, Gorsuch has a strong point, and just because an existing system is efficient and effective doesn’t mean we should overlook the fact that it might be unconstitutional. Gorsuch may be laying the groundwork for an assault on that system–and libertarians and conservatives who favor smaller government will probably applaud those efforts. It will be an interesting battle as it unfolds in the years ahead.

Meanwhile, Dimaya gets to stay in the country, because it can’t be determined whether burglary under the California statute ordinarily involves a high risk of violence or not.

This is mark Joseph “young” blog entry #229, on the subject of A Challenge to Winner-Take-All in the Electoral College.

We have frequently discussed the Electoral College, the system by which States send Electors to select a President of the United States. Much of that explanation appears in the page Coalition Government, compiled of several previous related articles. That discussion included the suggestion that the “winner-take-all” system for choosing Electors, adopted by forty-eight States and the District of Columbia, should be replaced, on a State-by-State basis, with a proportional system–and why such a change was unlikely to be made by any of them. (We more recently noted an opposite movement, an attempt to replace the State vote with a national vote that effectively eliminates the significance of any state, in web log post #203: Electoral College End Run, an idea having a much better chance of passing but which is probably unconstitutional.)

Now an organization called Equal Citizens has decided that there might be another way to eliminate the winner-take-all system and replace it with proportional representation: have the winner-take-all system declared unconstitutional. To this end, they have filed lawsuits against the practice in California, Massachusetts, Texas, and South Carolina.

That might seem like overkill. After all, wouldn’t one successful lawsuit fix the problem? However, it probably wouldn’t.

Suppose they filed in Texas and won in Texas. There are four Federal District Courts in Texas, any one of which would do, and victory would mean it was illegal to assign all thirty-eight of that State’s electors to the candidate winning the majority vote–in Texas. At that point they have to hope that the State appeals the decision to the Fifth Circuit Federal Court of Appeals, and that they win there. If they do, it will be illegal not only in Texas but also in Louisiana and Mississippi. However, it will still be legal in the rest of the country.

In order for it to become unconstitutional nationwide, the Supreme Court of the United States would have to decide the case. That means getting the Court to hear the case, and as we know the Court is rarely forced to hear any case and might prefer to stay out of this one. The best shot at getting Certiorari at the Supreme Court for a case like this is to get decisions in more than one Circuit which hold opposing positions. That is, they need one court to say it is constitutional and another to say it’s unconstitutional, so that the Supreme Court will see that it is necessary for it to resolve the matter for everyone. That means in filing four lawsuits they are hoping to win at least one and lose at least one, at the appellate level.

In theory, they could win an effective victory if they won all four suits, as States might see that as an indication that other circuits would agree and avoid a lawsuit by complying with the change. However, compliance would only be mandated in those circuits where the decisions were made, and additional lawsuits might be needed to change some recalcitrant States.

So how can a practice that is so nearly universal (only Maine and Nebraska do not follow it, and they both use district voting, that is, the state is divided into sections each of which picks a representative elector) be unconstitutional?

The argument is based on the XIVth Amendment, and specifically the Equal Protection Clause, which states that every citizen of legal age is to be treated equally by the States in all matters of law and politics. That means, according to the Amendment, one person, one vote. The claim is made that in a winner-take-all system, if fifty thousand voters pick one candidate but fifty thousand one voters pick the other, fifty thousand voters are disenfranchised when the entire electoral vote goes to the other candidate. In order for their votes to be protected, the electoral vote should be divided based on the proportion of voters supporting each candidate–in this case, equally, or slightly in favor of the majority candidate.

So is it a good argument?

Maybe.

The XIVth amendment is one of the Reconstruction amendments following the Civil War. The “Original Intent” of its reference to one person, one vote was to prevent discrimination against black men specifically; it was amending the section of the Constitution that counted slaves as partial persons by giving the emancipated slaves voting power equal to their white counterparts. In that sense, it has nothing to do with the method of selecting Electors for the College. However, as often happens, what the Framers of the Amendment wrote has been applied beyond what they intended. This clause is the basis for all those lawsuits over reapportionment: the claim that one party has by drawing the district lines given itself an unfair advantage by disenfranchising voters in certain geographic areas. The connection is obvious: if white government officials can set up districts such that blacks are always in the minority in every district (that is, by identifying black neighborhoods and apportioning them into several predominantly white surrounding neighborhoods) they can smother the voice of black voters. Thus “gerrymandering” to oppress racial voting blocks is a violation of the Equal Protection Clause.

Yet the Equal Protection Clause would itself be inequitable if it only protected blacks or other racial minorities. If it is a constitutional violation to stifle the representation of any one voter, it is equally a violation to stifle the representation of any other voter. Arguably winner-take-all voting does exactly that, and on that basis could be ruled unconstitutional.

On the other hand, as we have noted in previous articles, the Framers of the Constitution did not intend for Presidents to be chosen by democratic process. Quite the contrary, they expected that the Electoral College would always be hopelessly deadlocked and so serve effectively as a nominating committee offering a slate of candidates from which the legislature would select the one they believed would best serve them. As we noted in #172: Why Not Democracy?, that has happened exactly once. However, the process was intended to empower the States as States, not so much the individual voters save as they are citizens of their respective States. If we look at the Original Intent of the Constitution, it is evident that Electors are to be chosen by the States, by methods determined individually by each State.

Of course, the XIVth Amendment changed that at least in part. The question is, in doing so did it mean that a State’s Electors had to be representative of all the voters proportionately, or is it sufficient for a State’s Electors to represent the majority of the State’s voters? Are Presidents to be selected by the people, or by the States?

If winner-take-all Elector voting is deemed unconstitutional on that basis, it probably means that district apportionment is similarly unconstitutional, and electoral votes would have to be assigned based entirely on the proportion of the total vote in the state. Israel uses such a system to elect its Parliament, and it is not an unworkable system. If implemented, it would move us slightly closer to a President elected by the majority.

It is certainly worth considering.

As a footnote, in researching this article I stumbled upon this interesting toy which permits the user to experiment with various methods of choosing Electors and see their impact on the most recent two Presidential elections. What intrigued me was that of eight possible methods (including the current one), Trump won the Electoral College in all but that one specifically rigged to give the Democrats the most electoral votes (that is, by using winner-take-all in states they nominally won and proportional in states they nominally lost). That caused me to wonder how that could be if, as is often claimed, Clinton took the majority of the popular vote. The answer seems to be in part that despite the fact that Trump took more votes in California than in any other state but two, Clinton took enough votes in that state to tip the balance of the popular vote, but not of the Electoral vote, because California is underrepresented in the Electoral College (because it is underrepresented in the House of Representatives). That in turn reminded me that in the aforementioned web log post I commented that we did not want California to be the big bully that dictates the law to the rest of us. The other part of the answer is simply that Trump took more states, and because of the “plus two” Electors each state gets, the geography worked for him: the fact that Presidents are on some level chosen by the States, not the people, meant that having more states choose Trump gives him more Electors.

This is mark Joseph “young” blog entry #222, on the subject of The Range War Explodes: Interstate Water Rights.

Your ranch is upstream, and they dammed up the water.
Thirsty cows scream for my uncle to slaughter
The sheep
While your daddy’s asleep,
And I do the same for his daughter.

The Range War, by Todd Rundgren

In my hopefully forthcoming book Why I Believe I used the example of the range war, probably recalled from this old Todd Rundgren Romeo and Juliet song, in asking whether or not it was “theft” for the owner of an upstream ranch to dam the water supplies to provide for his own livestock and family, if it reduces the amount of water that would otherwise naturally flow downstream onto his neighbor’s ranch to water his livestock. It is a difficult and intriguing question: can I steal something from you that you never had, simply by preventing it from reaching you? If I prevent the water from flowing downstream, can you accuse me of theft?

It appears that the United States Supreme Court is going to answer that question: Florida is suing Georgia for using too much fresh water from the rivers that supply its northern areas, and the court has granted certiorari.

Georgia has a pretty solid case. After all, if a storm is coming and I get to the grocery store before you and buy the last of the milk, eggs, and bread (what is now being called a “French Toast Emergency”), did I thereby rob you of those supplies? If you took me to court over that, you would probably be laughed out of the room. It’s Georgia’s water; what they don’t use becomes Florida’s water; what they use to support their growing cities and their booming agriculture, they use. It doesn’t seem that Florida can really claim that it’s their water before it reaches them, and if it never reaches them, it never becomes theirs.

On the other hand, it’s not like Florida can get to the water first by leaving earlier. Florida is in a very real sense dependent on Georgia allowing the water to cross the border. Further, these are serious environmental concerns, removing water from wilderness areas dependent on those rivers.

Since this is a dispute between two States, the Supreme Court has original jurisdiction–the case does not come to them on appeal from a lower court, and there are no prior decisions for them to consider. An appointed Special Master has recommended that they side with Georgia, but at oral argument the justices reportedly seemed to be seeking a way to support Florida, Justice Ginsburg suggesting that a cap on Georgia’s water use might be necessary to protect its downstream neighbor.

Stay tuned for the resolution to this modern version of an old problem.